170 P. 933 | Or. | 1918
Lead Opinion
*266 “The title to the property alleged to have been converted is regarded as having passed to the defendant, who is liable for its value, with simple interest.”
Though the complaint alleges that the defendants deprived the plaintiff of his title to the fish-trap and withheld the possession thereof from September-, 1912, until the 12th of that month, it might be inferred from such averment that notwithstanding the possession of the trap had been surrendered to the plaintiff, the defendants held the title thereto. Any deduction to that effect is dispelled, however, by the allegation of the answer to the effect that Clanton notified the plaintiff of his intention to institute proceedings for the condemnation and confiscation of the trap, unless the latter paid $1,000 for its release, which sum was given for that purpose and not otherwise. This averment practically concedes that the title to the fish-trap was in the plaintiff, otherwise there would have been no need of commencing an action to take, for the benefit or advantage of the public, the property of a private owner without his consent. A fair construction of the allegations of the complaint, which were not challenged by demurrer, but are thus aided by the averments of the answer, leads to the conclusion that the action litigated was not trover, but duress of personal property, which unlawful constraint consisted in the alleged seizing by force and withholding from the plaintiff, who was entitled thereto, the possession of the fish-trap and in demanding of him the payment of a sum of money as the condition of its release: 2 Cooley, Torts (3 ed.), 970. It must be admitted that it is not duress for a person to threaten to commence a civil action, or to institute legal proceedings, or to declare his intention to resort to the courts in order to enforce
“To constitute duress, it is sufficient if the will be constrained by the unlawful presentation of a choice between comparative evils; as inconvenience and loss by the detention of property, loss of property altogether, or compliance with an unconscionable demand. It has been held, however, that duress of property cannot exist without there being a threat to do some act which the threatening party has no legal right to do,— some illegal exaction, or some fraud or deception. The restraint must be imminent and such as to destroy free agency without present means of protection”: 9 E. C. L. 723, par. 12.
It is evident the plaintiff then had no present mode of protection, for if he had attempted by legal means to have secured possession of the fish-trap it is probable the master fish warden would immediately have caused proceedings to be instituted in the proper court for the condemnation and sale of the appliances for an unlawful use thereof, in the manner prescribed: Section 5321, L. O. L.; Nicklas v. Rathburn, 69 Or. 483 (139 Pac. 567). Instead of resorting to the mode thus provided by law the defendants, undoubtedly acting as they believed in the interests of the public and to protect the great fishing industry, personally undertook to discharge the duties of judge and sheriff, and
As no demurrer was interposed to the complaint, its averments will be much more liberally construed than when they are formally challenged at the proper time: North v. Union Savings & Loan Assn., 59 Or. 483 (117 Pac. 822). Thus interpreting the initiatory pleading, it is believed the cause set forth therein sounds in tort for duress of property and that the complaint states facts sufficient to constitute a cause of action.
"We conclude these inquiries should be answered in the affirmative, and such being the case the judgment is affirmed. Affirmed. Rehearing Denied.
Rehearing
On Petition for Rehearing.
Petition for rehearing denied and former opinion modified.
Mr. George M. Brown, Attorney General, Mr. Isaac E. Van Winkle, Assistant Attorney General, and Mr. G. W. Mullins, District Attorney, for the Petition.
Messrs. Anderson & Erickson, contra.
In Banc.
Attention is called in a petition for a rehearing to the fact that in the former opinion herein it was taken for granted that no reply had been filed, when the abstract shows that by stipulation of the parties the averments of new matter in the answer were deemed denied. Based upon this mistake it is argued by appellant’s counsel that the allegations of the complaint are not sufficient to constitute a cause of action, and that the findings of fact as made by the court do not support the judgment which was rendered. The complaint reads:
(1) “That on and prior to the 12th day of September, 1912, the plaintiff was the owner of and in possession of, a certain pound net fish-trap, in the waters of the Columbia River, in the vicinity of Woody Island, and about 1,000 feet from the shorelands of said river, and within the boundaries of Clatsop County, State of Oregon, which said pound net fish-trap at that time was marked ‘No. 1, Ore.’ and No. -IJ. S. and was and is of the value of $2,000.
(2) “That on or about the - day of September, 1912, the defendants, without the knowledge or*271 consent of the plaintiff and against his will, took, converted and appropriated said pound net fish-trap to their own use, and deprived the plaintiff of his title thereto and of his possession thereof; that said defendants withheld the possession of said pound net' fish-trap from the plaintiff, during the period from September-, 1912, until September 12, 1912, and thereby deprived the plaintiff of his right to maintain and operate said fish-trap for the purposes of catching salmon fish, to the injury of the plaintiff in the sum of $3f)0.
“That said defendants, although the plaintiff frequently demanded that they return said fish-trap to the plaintiff, refused and neglected to return the same to him, unless he pay them the sum of $1,000; that in order to secure possession of said trap, said plaintiff was compelled to pay said sum of $1,000 to said defendants ; that said defendants threatened to sell said trap to other parties than the plaintiff, unless the plaintiff paid said sum, and they did offer the same for sale to other persons than the plaintiff, and thereupon the plaintiff, in order to operate said trap, paid said sum of $1,000.
“Wherefore, by reason of the premises, plaintiff demands judgment against the defendants in the sum of $300, and the further sum of $1,000, with interest thereon from September 12, 1912, until paid, and for his costs and disbursements herein.”
Based upon the testimony received at the trial, findings of fact were made to the effect,
(1) That on and prior to September 12, 1912, the plaintiff was the owner and in the possession of a pound net’ fish-trap, located and marked as alleged in the complaint.
(2) That the trap was of the value of at least $2,000.
(3) That on and prior to September 12, 1912, the defendant B. E. Clanton was Master Fish Warden of the State of Oregon, and the defendant Frank Sweet was his deputy for the Columbia Biver District.
*272 (4) That on or about September 8, 1912, the defendants, without the knowledge or consent of the plaintiff, and against his will, took possession of the fish-trap and withheld it, thereby preventing the plaintiff from operating the trap.
(5) That the possession and operation of the trap during the time mentioned was of great value to the plaintiff; that large quantities of fish abounded in the waters in the immediate vicinity of the trap in September, 1912.
(6) That on and prior to September 12, 1912, the defendant E. E. Clanton threatened to sell the fish-trap, and offered it for sale to persons other than the plaintiff; that Clanton would have sold the appliance to persons other than the plaintiff, unless the latter paid that defendant the sum of $1,000 therefor.
(7) That persons, other than the plaintiff, had submitted bids to Clanton for the fish-trap.
(8) That in order to prevent the sale of the trap to persons other than the plaintiff, and to secure possession thereof so as to operate it, the plaintiff was compelled to and on September 12, 1912, did pay Clanton the sum of $1,000.
(9) That prior to September 12, 1912, Clanton offered to sell the trap to persons other than the plaintiff, and had received from them bids therefor; that Clanton informed the plaintiff that unless he paid the sum of $1,000 therefor, the trap would be sold to other persons, and that defendant would have sold the same unless the plaintiff paid him the sum of $1,000.
(10) And that because of the acts of the defendant Clanton, the plaintiff was damaged in the sum of $1,000.
As conclusions of law the court also found that Clan-ton deprived the plaintiff of the fish-trap without due process of law, and converted the same to his own use; that the sum of $1,000 so paid by the plaintiff was not voluntary, but was made under duress of his property; and that the plaintiff was entitled to judgment
The defendant on September 7, 1916, requested the court to make other findings all of which were denied, except as follows:
(1) “That on or about the 8th day of September, 1912, the plaintiff was unlawfully operating and causing the operation of the fish-trap mentioned in plaintiff’s amended complaint, and thereupon the defendant, Frank Sweet, took possession of said trap and transferred the possession thereof to the defendant, R. E. Clanton.
(2) “That thereafter, to wit, on the 9th day of September, 1912, a complaint was sworn to before one P. J. Goodman, the justice of the peace for Astoria Precinct, Clatsop County, State of Oregon, accusing and charging the plaintiff with operating the said fish-trap during’ the closed season of said year; that thereafter, to wit, on or about the 9th day of September, 1912, said warrant was served upon the plaintiff herein and the plaintiff appeared on said day in said justice’s court and entered a plea of guilty to said charge, and thereafter, to wit, on said 9th day of September, 1912, judgment was entered against the plaintiff, adjudging that he be fined in the sum of $50 and costs, which judgment was entered and docketed in said court and which judgment the plaintiff then and there paid,”
*274 “The action for money had and received, which is the form in which a party must sue to recover back a payment which he has made by compulsion, is an ‘equitable action’ (Moses v. Macfarlane, 2 Burr. 1009), and it proceeds on equitable principles.”
To the same effect is the case of Alston v. Durant, 2 Strob. L. (S. C.) 257 (49 Am. Dec. 596), where the Supreme Court of South Carolina held that an action of assumpsit would lie for money paid by the plaintiff for the return of his slave, whom the defendant, as sheriff, refused to surrender, except upon the receipt of a sum in excess of his lawful fees.
In the case at bar no judgment was given nor was any action commenced to condemn the fish-trap. By the plaintiff’s plea of guilty, however, to the charge of unlawfully using such means of catching salmon during the closed season, he thereby rendered himself liable to forfeit all his right and title in and to the property so employed for an illegal purpose. It will be remembered the trial court found that the fish-trap was of the value of at least $2,000. The defendant Clanton, if he was authorized without a warrant to seize the appliance, had no right to compromise the offense by accepting only one half of the value of the trap. He did not possess any pardoning power. He was not authorized to surrender the appliance to any person except to the highest bidder for cash upon a valid sale thereof by the sheriff, pursuant to an execution issued upon the judgment of condemnation: Nicklas v. Rathburn, 69 Or. 483 (139 Pac. 567). Instead of notifying the prosecuting attorney whose duty it was to institute an action to condemn the trap, the master fish warden assumed to act as the court in rendering a judgment to that effect, and also as sheriff to enforce the execution issued upon such final determination, except that Clanton threatened to sell the appliance to any person who would purchase it from him, and finally disposed of it to the plaintiff for only
In a note to the case of Harris v. Cary, 112 Va. 362 (71 S. E. 551, Ann. Cas. 1913A, 1351, 1354), it is said:
“It is well settled that if a person has in his possession personalty belonging to another, and refuses to deliver the property to the owner unless he is paid a sum of money which he has no right to receive, and, in order to obtain possession of his property, the owner pays the sum demanded, the payment is made under compulsion and may be recovered.”
“When the right to recover in an action is in good faith denied, interest will not be allowed on the demand prior to its liquidation by judgment. ’ ’
To the same effect are the cases of Sargent v. American Bank & Trust Co., 80 Or. 16 (154 Pac. 759, 156 Pac. 431); Carnahan Mfg. Co. v. Beebe-Bowles Co., 80 Or. 124 (156 Pac. 584); Holtz v. Olds, 84 Or. 567 (164 Pac. 583, 1184); City of Seaside v. Oregon Surety & Casualty Co. (Or.), 171 Pac. 396. The defense herein was interposed in good faith and this being so, no interest was permissible until the judgment was rendered. A correction will be made in this particular, thereby allowing the appellant his costs and disbursements upon this appeal. In all other respects the former judgment is adhered to and the petition for a rehearing is denied.
Modified and Rehearing Denied.